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Hi Blog. The Economist print edition last week had a thorough story (albeit not thorough enough on Japan) on what divorce does to people when it’s international. Of particular note was that in Japan, the article noted that you don’t comparatively lose much money, but you lose your kids. It also mentions Japan’s negligence vis-a-vis the Hague Convention on child abduction.

…According to Jeremy Morley, an international divorce lawyer based in New York, hiding assets from a spouse is also much easier in some countries than in others. California, at one extreme, requires complete disclosure of assets. At the other extreme, Austria, Japan and many other countries require very little disclosure. A California court recently ordered a husband to pay $390,000 in costs and penalties to his wife because he did not disclose some significant financial information. In another jurisdiction, the assets could have stayed hidden.

Who gets the children?

Cash and kids may pull in different directions. Countries that are “man-friendly” (shorthand for favouring the richer, usually male, partner) when it comes to money may be “mum-friendly” when it comes to custody. Japan, for example, is quick and cheap for a rich man—unless he wants to keep seeing his children. English courts are ferocious in dividing up assets, even when they have been cunningly squirrelled away offshore. But compared with other jurisdictions, they are keen to keep both divorced parents in touch with the children.

The children’s fate, even more than family finances, can be the source of the hottest legal tussles. The American State Department unit dealing with child abduction has seen its caseload swell from an average in recent years of 1,100 open cases to 1,500 now. In Britain, the figures rose from 157 in 2006 to 183 in 2007, according to Nigel Lowe of Cardiff Law School.

Of the cases reported worldwide, mothers are the main abductors when a marriage breaks down. They are cited in 68% of cases. Ann Thomas, a partner with the International Family Law Group, a London law firm, says child abduction has increased “dramatically” in the past three years or so. A big reason is freedom of movement within the European Union, which has enabled millions of people from the new member states to live and work legally in the richer part of the continent. That inevitably leads to a boom in binational relationships, and in turn more children of mixed marriages. Ms Thomas notes that when a relationship between a foreign mother and an English father breaks down, the mother often assumes that she can automatically return to her homeland without the father’s permission. That may be a costly legal mistake.

Most advanced industrialised countries, plus most of Latin America and a sprinkling of others, are signatories to the 1980 Hague Convention, a treaty which requires countries to send abducted children back to the jurisdiction where they have been living previously. That is fine in theory: it means that legal battles have to be fought first, before a child is moved. It is a great deal better than a fait accompli which leaves one parent in possession, while the other is trying to fight a lengthy and expensive legal battle in a faraway country.

But in practice things are very different. Views on the desirability of children being brought up by “foreigners” vary hugely by country; so do traditions about the relative roles of fathers and mothers in bringing up their children after divorce. In most Muslim countries, for example, the assumption is that children over seven will be brought up by the father, not the mother, though that is trumped by a preference for a local Muslim parent. So the chances of a foreign mother recovering abducted children from a Muslim father are slim. Apart from secular Turkey and Bosnia, no Muslim countries have signed the Hague Convention, though a handful have struck bilateral deals, such as Pakistan with Britain, and Egypt and Lebanon with America.

Japan has not signed it either—the only member of the rich-country G7 not to have done so. Canada and America are leading an international effort to change that. Foreign fathers, in particular, find the Japanese court system highly resistant to attempts even to establish regular contact with abducted and unlawfully retained children, let alone to dealing with requests for their return. Such requests are met with incomprehension by Japanese courts, complains an American official dealing with the issue. “They ask, ‘Why would a father care that much?’” Countries edging towards signing the Hague Convention include India, Russia and mainland China. But parents whose ex-spouses have taken children to Japan should not hold their breath: as Ms Thomas notes, even if Japan eventually adopts the Hague Convention, it will not apply it retrospectively.

Views on the desirability of children being brought up by “foreigners” vary hugely by country…
In other words, the Japanese courts are racist and see NJ as automatically unfit. Call a spade a spade; these media outlets need to pull no punches when revealing Japan’s shocking judiciary to the outside world.

Well the sobering thing about Japan is that on top of the non Japanese bias there is an anti father bias as well. My son was abducted to Tokyo in July of ’08 from Seattle WA, USA and even after retaining an Japanese attorney to submit my US orders to the US court, the attorney every meeting asks if I am really able to raise my son and if I am really interested in seeing him. Even my own Japanese counsel doesn’t fully get the idea of a father wanting ongoing contact with his children. The other fun part of this was them asking for a certificate granting me permanent sole custody. I explained that my son was a child and inidividual and therefore a parenting plan isn’t final until he is 18. The one unique point in my case is that three Tokyo area courts have rejected her claims for sole custody and left jursidiction in the US, an apparent rarity acording to the State Dept. We’ll see how long it lasts, hopefully long enough fo me to get my lawyer paid off and orders acknowledged.

— Thanks Carl. Just for clarification, where were these three “Tokyo area courts”? The jurisprudence sounds a bit odd. One doesn’t usually get three “lower courts” to give a decision unless the defendant has shifted her jurisdiction, especially when a year has not even elapsed. Are you sure you’re not confusing a choutei with a court? Thanks.

Thanks. I’m not particularly interested in it at the moment since kids are many years away, if ever, but I was curious to know how this was being dealt with in a larger context. Have you had much contact with those groups? I’m sure at least some of them would be happy to work with you in some fashion.

— They send me stuff, I blog it here. We’re in email contact. I’m up here, they’re down there, it’s tough to get together promptly or regularly…

Sorry this took so long. No actually there were only two venues the Tokyo Family Court (Minji) and the Tokyo High Court (?) (Koto Siabansho) The three came from the fact that on initial reading there two cases in Family court but only one of the rejections was appealed in the superior court. If you contact me on facebook or through CRC I would be more than happy to show you the originals or my translations.

A single judge signed the initial decision and a chief justice and two judges signed the appeal rejection. D.O.State, people in similar circumstances and my Japanese attorneys were all amazed at this turn of events and the speed of the decisions. We’ll see if it means anything. On a side note the length and writing of the decisions was impressive for a family court decision.